BVA9500707 DOCKET NO. 93-08 441 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased (compensable) rating for left ear hearing loss. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from January 1978 to November 1981 and October 1986 to December 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision from the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision, the RO granted service connection for left ear hearing loss and assigned a noncompensable disability rating. The veteran disagrees with the assigned rating. A RO hearing was scheduled for October 1992, but the veteran failed to report for the hearing. On his May 1993 informal hearing presentation the veteran's representative raised the issues of entitlement to service connection for hypertension, bilateral foot disorder, and residuals of a right ankle fracture. He also raised the issue of entitlement to an increased (compensable) rating for non- traumatic tinnitus. However, since those issues are not currently on appeal they are referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting a compensable evaluation for service-connected left ear hearing loss. Specifically, the veteran asserts that his left ear hearing loss makes it difficult to converse when someone speaks to him from the left side and to converse telephonically in the left ear. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased (compensable) rating for left ear hearing loss. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's left ear hearing loss is manifested by an average pure tone hearing threshold of 51 decibels at 1000, 2000, 3000 and 4000 hertz with a speech discrimination ability of 84 percent correct. 3. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. CONCLUSIONS OF LAW 1. An increased (compensable) rating for left ear hearing loss is not warranted. 38 U.S.C.A. § 1155, 1160(a), 5107 (a) (West 1991); 38 C.F.R. § 3.383, Part 4, § 4.85, including Code 6100 (1993). 2. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service medical records indicate that the veteran complained of left ear hearing loss on several occasions. The separation examination report listed findings consistent with left ear hearing loss and the examiner noted hearing loss of the left ear, non progressive. After service the veteran was accorded a VA audiological examination in January 1992. Average pure tone thresholds of the left ear were reported as 54 at 1000, 2000, 3000 and 4000 hertz. Speech recognition ability at those frequencies for the left ear was 80 percent correct. The average pure tone thresholds for the right ear were reported as 11 and the speech recognition ability as 100 percent correct. Based upon the service medical records and the January 1992 VA examination report, the RO, in an April 1992 rating decision, granted service connection for left ear hearing loss, and assigned a noncompensable evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1993). Evaluations of unilateral defective hearing range from noncompensable to 100 percent and are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, and the veteran does not have total deafness in both ears, hearing acuity of the nonservice-connected ear is considered to be normal for rating purposes. 38 U.S.C.A. § 1160(a); 38 C.F.R. § 4.85 and Part 4, including Codes 6100-6110 (1993). Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). The veteran is currently service-connected for defective hearing in his left ear only and that he does not have total deafness in both ears. As a result, the hearing acuity of the veteran's nonservice-connected right ear is considered to be normal for rating purposes. 38 U.S.C.A. § 1160(a); 38 C.F.R. § 3.383, Part 4, § 4.85. In such situations, a maximum 10 percent evaluation is assignable where the hearing acuity in the service-connected ear is at level "X" or "XI." 38 U.S.C.A. § 1160(a); 38 C.F.R. Part 4, § 4.85. On VA audiometric examination, in September 1992, pure tone air conduction testing revealed the following threshold levels (in decibels): Hertz 1000 2000 3000 4000 Average Left ear 50 45 50 60 51 Right ear 10 10 10 10 10 Speech recognition ability for the left ear was 84 percent correct and 100 percent correct for the right ear. Such audiometric findings translate to level II hearing loss in the left ear, warranting a noncompensable rating for service- connected left ear hearing loss. 38 U.S.C.A. §§ 1155, 1160(a); 38 C.F.R. § 3.383, Part 4, § 4.85, including Code 6100. The examiner noted that the veteran's hearing was within normal limits in the right ear but that there was moderate sensorineural hearing loss in the left ear. He reported that speech reception old thresholds were in close agreement with pure-tone averages. The Board recognizes that the veteran's left ear hearing acuity may have deteriorated since the initial grant of service connection. However, it has not deteriorated to the extent that it warrants an increased (compensable) rating under the current regulatory provisions. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). ORDER Entitlement to an increased (compensable) rating for left ear hearing loss is denied. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.